$2 Million Bias Verdict Upheld

Gay cook who is HIV-positive prevails against California Youth Authority’s appeal

A unanimous three-judge panel of the California Court of Appeal in Los Angeles voted to approve a jury damages award of almost $2 million for Bruce Hope, a gay man who worked as a cook at the Nelles Youth Correctional Facility in Whittier, rejecting an appeal by the California Youth Authority.

Hope proved that he suffered harassment, retaliation, and discrimination because of his sexual orientation and HIV status. Justice Robert M Mallano wrote the opinion for court, released on September 13.

Hope, a professional chef, was seeking a permanent position with full benefits including pension, so at age 34 applied for a cook position with the state of California. He was offered a position at Nelles, a facility for youthful offenders, initially as a replacement worker and by 1996 on a full-time, permanent basis.

Hope quickly ran into problems with staff members who correctly perceived him to be gay. His immediate supervisor, Felipe Marcellino, quickly began referring to him as a “motherfuckin’ faggot” and a “homo,” and Santos Ortiz, a security guard assigned to the kitchen, used similar language, including “faggot ass bitch” and “faggot ass motherfucker.”

After Hope reported Ortiz for giving one of the facility’s inmates an “unknown substance” in violation of the rules, Ortiz began calling him a “snitch” and apparently resolved to make his life as miserable as possible. Ortiz dumped garbage in areas where Hope had been cleaning, told some of the youthful inmates that Hope was romantically interested in them, and undermined his ability to direct those inmates assigned to work in the kitchen, among many affronts.

Michael Hedgepath, a kitchen supervisor, testified that he told Ortiz to stop calling Hope names the first time he heard it, but that Ortiz responded that he “didn’t give a damn what that homo has to say.” Hedgepath, in turn, looked the other way and did not report the matter to higher management.

Hope’s repeated efforts get relief from senior management were of no avail. Instead a rumor that he was molesting young inmates led to both an internal and a police investigation, both of which concluded the charges were phony. Hope was told of a promotion by a supervisor, but that was later withdrawn without explanation other than that management had decided he “wasn’t right” for the position. Subsequent complaints about Ortiz and Marcellino earned Hope only lectures about getting along with people. Hope discovered that salary increases he had earned were withheld due to the perception that he couldn’t get along with co-workers who were continually harassing him.

Hope is HIV-positive, but responds well to medication and never developed AIDS symptoms. Nonetheless, the stress of the harassment at work led to an attendance problem, which in turned spawned rumors that the “faggot” had AIDS. When he asked one sympathetic supervisor why people were spreading those rumors, she replied, “Bruce, because you are always sick. Everyone thinks you are gay. They think you have AIDS.” The stress level finally caused Hope to develop a bleeding blister in the retina of his right eye that resulted in permanent vision loss. His doctor told him that this condition is typically caused by job stress and more common in doctors and lawyers.

Hope confided his HIV diagnosis in a manager who had warned him that his absences could get him in trouble, and she immediately reported it to her superiors. They called the California Youth Authority headquarters in Sacramento to find out whether to fire Hope, but were instructed instead not to discriminate against him.

Hope testified at trial that although his situation did not improve despite all his efforts, he “hung in there” as long as he could.

In 2001, Hope received a medical leave of absence and did not return to work, instead filing his lawsuit.

The case went to court in June 2003. After a three-week trial, the jury brought in a verdict in favor of Hope on grounds of harassment and retaliation in violation of the Fair Employment and Housing Code, which forbids sexual orientation and HIV-related discrimination and harassment and awarded him $917,104 in economic damages for loss of pay and $1 million in non-economic damages for emotional injury. The judge denied the authority’s motion to set aside the verdict and allowed attorneys and other costs to be assessed as well, resulting in a total award well over $2 million.

On the appeal, the youth authority argued that it could not be held liable for sexual orientation harassment because Hope was not out on the job, but was soundly rebuffed. Justice Mallano pointed out that testimony supported the view that everybody thought that Hope was gay, that he was subjected to ongoing, vicious harassment on that basis, and that the employer knew about it but failed to take corrective action.

The court found that $1 million was not a shockingly high award for the emotional distress and suffering Hope had endured. As to the lost income, the court concluded that Hope had been denied promotion and raises based on discrimination. The authority had not met its legal burden of showing that Hope could have gotten new employment, instead simply arguing he was capable of work, so the court also refused to reduce the compensatory damage award.

The authority could appeal to the California Supreme Court, but given its notorious failures in management and in dealing with its youth inmate population, it may well be too embarrassed to do so.

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